94 Mo. App. 15 | Mo. Ct. App. | 1902
In the latter part of the year 1900, one O. E. Burge departed this life at the county of Cooper, in this State, first having made a last will and testament wherein he named and appointed two executors thereof, one of whom died and the other resigned. Afterwards, letters of administration with the will annexed were granted by the probate court of said county to the defendant herein, a son of the decedent, who qualified and took charge of the latter’s estate.
This motion was sustained by the probate court and an order Avas made accordingly, from which the defendant appealed to the circuit court where there was a hearing which insulted in an order denying the plaintiff’s motion. Erom this order the plaintiff has appealed.
I. At the very threshold, our right to revieAv the several rulings of the trial court, assigned as error, is challenged on the ground that under the statute no appeal from the order of the court refusing to revoke the defendant’s letters could be allowed.
When an appeal is taken from the decision of a probate court in any one of the cases specified in section 278, Revised Statutes 1899, and the transcript of the record and proceedings relating to the case Avith the original papers are filed in the office of the clerk of the circuit court, the latter court shall be possessed of the cause and shall proceed to hear, try and determine the same anew, Avithout regarding any error, defect or other imperfection in the proceedings of the former. R. S. 1899, secs. 284, 285; Ferry v. McGowan, 68 Mo. App. 612. When a case is thus removed into the circuit court, it is not different than if it had been originally brought there. As to such ease the circuit court stands in the place of the probate court and exercises a like jurisdiction. An appeal
The defendant’s challenge of the plaintiff’s right to an appeal can not be upheld, for it has been authoritatively ruled that where the claim of a right under the statute to administer is denied by the probate court the claimant may have an appeal. State v. Collier, 62 Mo. App. 38, and State v. Fowler, 108 Mo. 465, hold no more than that an appeal does not lie from an order appointing an administrator, and as we have no such order here the application of the rule in that case can not be invoked by the defendant in this.
II. The issue of fact on which the case was made mainly to turn in the trial court was whether or not the plaintiff was the lawful wife of the decedent at the time of his death. It appears from the evidence that the decedent was thrice married. The 'first wife died, and it is claimed by the plaintiff that he was divorced from the second; and that, the plaintiff being the third, survived him and is therefore, his lawful widow.
To maintain the issue, the plaintiff put in evidence a certificate of her marriage with the decedent in 1892. The defendant then put in evidence a further certificate showing the solemnization of the marriage of decedent with Emily Buckmaster in 1888, coupled with parol evidence showing that she was alive at the time of the trial. The plaintiff then introduced the record of the proceedings of the circuit court of Cedar county, in this State, in a certain action wherein O. E. Burge was plaintiff and Emma Burge was defendant, from which it appears that a judgment was given therein on constructive notice, or notice by publication.
The statute (sec. 515, R. S. 1899) requires that in the several kinds of suits therein specified, where the ordinary process of the law can not be served on the defendant, the court or clerk in vacation shall make an order directed to the non-residents or absentees notifying them of the commencement of the suit, etc. “This section means the names of such non-residents or absentees shall be specified in the order. In no other conceivable way could the order be directed to them.” Troyer v. Wood, supra. “And if not named in the order of publication and named correctly the substituted service of process is as void and valueless as if a blank had been left where the wrong name was inserted, Chamberlain v. Blodgett, 96 Mo. 482. “When a wrong name is used in an order of pub
In Whelan v. Weaver, 93 Mo. 430, it was held that Wheler and Whelen were not the same and not idem sonans. In Corrigan v. Schmidt, 126 Mo. 304, it was said that a notice by publication to Owen Corrigan and Elisha Corrigan did not authorize a judgment against John Owen Corrigan and Elizabeth Alice Corrigan. In Elting v. Gould, 96 Mo. 535, the order of publication was to R. O. Elting, and it was held not notice to Richard O. Elting; but it was further held that inasmuch as by the latter name he saw fit to take title to the land, and by the former name place it on record, ho was estopped to say the initials in the order of publication were not a sufficient designation of himself.
• In a suit for divorce by Amanda M. Xeisel against Heindrick Keisel, the publication of the notice was to Pleindrick “Keesel;” and in Hubner v. Reickhoff, 103 Iowa 368, where the record of the judgment in the said divorce suit was before the court it was said: “This question being jurisdictional, it can not well be claimed that the decree in the divorce proceeding is conclusive against collateral attack. If the sub
In Turner v. Gregory, ante, it was held that an order of publication which is directed to the defendant by the initials of his Christian name, is not sufficient to give jurisdiction. Skelton v. Sackett, ante. In Cruzen v. Stephens, 123 Mo. 337, it was held that where the notice names the parties defendant with sufficient definiteness to plainly indicate their identity, it should be held good and not open to collateral attack. And that where the notice was to the wife by her full name, Etta E. Eisher, and her husband, and the latter was described as “--Eisher her husband” that such notice was good and the judgment thereon was not subject to collateral attack. This ruling does not seem to be in entire accord with Turner v. Gregory, ante, where it was held that “on notifying a person by publication he can only be designated by his name (Troyer v. Wood, 96 Mo. 480, and Chamberlain v. Blodgett, 96 Mo. 482), and if his name be omitted or a wrong name is attributed to him, it is at once evident that he receives no notice in fact.” Nor is it in entire accord Avith the rilling in Skelton v. Sackett, 91 Mo. 377, referred to approvingly in Turner v. Gregory, supra. And if the Cruzen v. Stephens ruling can not be reconciled with Turner v. Gregory, the latter being the last expression of the Supreme Court on the subject, must be folloAved by us.
The foregoing rules are quoted mostly from decisions in tax cases to be found in our own reports, where the proceedings therein were quasi in rem. Corrigan v. Schmidt, ante. The divorce proceeding in question was where the court had
In the light of these rules it is clear to us that “Emily” and “Emma” are not the same Christian names, nor are they idem sonans, for the attentive ear would find no difficulty in distinguishing the one from the other. It must therefore follow that notice to Emma Burge would not be notice to Emily Burge. The defendant in the'divorce suit gave the minister of the gospel who solemnized the marriage with the decedent the name of Emily as the name by which she was christened, and the decedent therefore knew when he brought the suit for divorce her Christian name. There was no excuse for describing tire defendant in that suit by any “pet name.” We discover nothing in the evidence to justify the conclusion thqt she was known to the decedent by the name of “Emma,” or that she was generally identified by any such appellation.
While it is not to be doubted that the description of the decedent in the order of publication by his initials instead of by his full Christian name of “Oscar,” without more, would not be sufficient to authorize a judgment, yet, in view of the fact that he gave to the minister solemnizing his marriage with the defendant as his Christian name that of “O. G.” instead of “Oscar E,” and on other occasions described himself by the name of “0. G. Burge,” it may be that within the meaning of the rule declared in some of the adjudged cases the description in the order as to him was sufficient. While it is perhaps true that Emina, Emily, Emeline, Emmiline, Emelee and Emilia are names that may as a general thing
But the plaintiff herein contends that even if the divorce judgment was void, that the plaintiff is estopped to deny its validity. No case has been found deciding that a court has jurisdiction to decree a divorce when there has been no notice to defendant either by the personal service of process or by publication. A judgment without such notice would be a nullity. Bishop on Mar. and Divorce, secs. 11, 142 and 552; Freeman on Judgments, sec. 580. As said by us in Hamill v. Talbot, ante: “It may be freely admitted that a divorce per se can not be established by estoppel.” And in the same case it was further said, in substance, that while a void decree for divorce can not be validated by the acts of the parties thereto, except in so far as either is estopped by his or her own wrongful conduct in enjoying the fruits of such decree, as where a court had without jurisdiction granted alimony to the plaintiff wife and the defendant afterwards, with knowledge of the decree, had manned again, and otherwise conducted himself as a single man, he could not be heard to dispute the validity of the decree as to alimony.
But in the decree in the divorce case proceedings under consideration here, no alimony or property rights were dealt with. There was no clause in the decree in personam. The defendant is claiming no property right under the decree. Hence, an estoppel, if allowed, could have no other effect than
Even if the decree had been valid as against the defendant, there is not that privity which is an essential element of an estoppel in cases of this kind between the defendant and the decedent for the ground of privity is property and not personal relation. To make one a privy to an action, he must have acquired an interest in the subject-matter of that action either by inheritance, succession or purchase, or he must hold the property subordinately. Bigelow on Estoppel, 142. There is no pretense here that the defendant has acquired any interest in the subject-matter of the divorce proceeding in either of the ways just stated, nor could he: for the only matter determined in that action related solely to the marriage status. There is therefore no ground upon which to claim that the defendant was privy to the divorce proceedings, or in any way bound thereby in a controversy of this kind. Upon no principle deemed applicable to the case can we think the defendant estopped 'to impeach the divorce decree on the ground of the want of jurisdiction in the court giving it.
No error is seen in the action of the court in permitting witness Davidson to testify to the facts he did (Standard Oil Co. v. Drug Co., 84 Mo. App. 16), nor in allowing the defendant to adduce parol evidence in impeachment of the divorce decree, and especially so since the plaintiff adduced similar evidence to sustain it.
The judgment will accordingly be affirmed.